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Vinubhai Harilal Panchal Vs. N.H. Shethan, Deputy Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR66
AppellantVinubhai Harilal Panchal
RespondentN.H. Shethan, Deputy Commissioner of Police and ors.
Cases ReferredIn Govindrajan v. The Regional Inspector of Municipal Councils and Local Boards Vellore
Excerpt:
.....adopted by the deputy commissioner of police is therefore clearly contrary to rule 131 of the bombay cinema rules 1954 but it is contended by the learned assistant government pleader that rule 131 does not say that a show cause notice should have a reference to the licence which was to be suspended. chapter viii deals with licences for sale of tickets and it is clearly provided in rule 116 which is found in chapter viii relating to licences for sale of tickets that a licence under rule 110 may be granted for any period upto 31st december following the date of issue. in our opinion the effect of rule 131 is clearly that the licensing authority can suspend or cancel a licence in respect of which a show cause notice has been issued. as the licensing authority has not done so it has..........was passed without giving a show cause notice which is required to be given under rule 131 of the bombay cinema rules 1954 it is contended that the show cause notice which was given on 14-6-1960 related to the licence which was given on 14-6-1960 and did not relate to the licence which was sought to be suspended by the order now impugned. other contentions have also been urged but in the view which we propose to take, it is not necessary to consider the other contentions of the petitioner.3. before we consider the main contention of the petitioner it is necessary to deal with a preliminary objection taken by the learned assistant government pleader. the objection is that material facts have been suppressed in the petition and therefore the petition should be rejected in limine. his.....
Judgment:

V.B. Raju, J.

1. This is a petition under Article 226 of the Constitution of India by the holder of a licence to sell tickets in Laxmi Talkies situate at Gheekanta Ahmedabad. On 14 6-1960 a show cause notice was issued to him requiring him to show cause why his licence which was valid upto 31-12-1960 should not be suspended on the ground that certain irregularities in the sale of tickets had been noticed by the Chief Entertainment Duty Inspector when he visited the Laxmi Talkies on 17-4-1960. After that show cause notice the petitioner gave his reply on 30-6-1960. Respondent No. 1 passed an order on 23-7-1960 suspending the petitioners licence and he filed a civil suit on 30-7-1960 Which was ultimately withdrawn as the requisite notice under Section 80 C.P. Code had not been given. The licence for the next year namely 1961 was granted on 31 On 28-2-1961 an order was passed suspending this licence and this order was served on the petitioner on 5-3-1961. It is this order which is challenged in this writ petition.

2. This order suspending the licence for selling tickets at Laxmi Talkies is challenged on several grounds and one of them is that the order was passed without giving a show cause notice which is required to be given under rule 131 of the Bombay Cinema Rules 1954 It is contended that the show cause notice which was given on 14-6-1960 related to the licence which was given on 14-6-1960 and did not relate to the licence which was sought to be suspended by the order now impugned. Other contentions have also been urged but in the view which we propose to take, it is not necessary to consider the other contentions of the petitioner.

3. Before we consider the main contention of the petitioner it is necessary to deal with a preliminary objection taken by the learned Assistant Government Pleader. The objection is that material facts have been suppressed in the petition and therefore the petition should be rejected in limine. His contention is that an inquiry was made by the Chief Entertainment Duty Officer on the spot when he visited the Laxmi Talkies on 17 and that this fact has been suppressed in the petition. In support of this contention that the inquiry has been made by the Chief Entertainment Duty Officer he relied on the affidavit made by the Deputy Commissioner of Police. Strangely enough this affidavit does not show which paras are true to the knowledge of the person making the affidavit and which paras are true to his belief Order 19 rule 3 C.P. Code provides as follows:

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications on which statements of his belief may be admitted: provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents shall (unless the Court otherwise directs) be paid by the party filing the same.

Grounds of belief.-The grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be safe to act on the deponents belief (s). Chapter HI rule 5 of the Bombay High Court Appellate Side Rules 1960 provides as follows:

The declarant ^hallstale what paragraphs or portions of his affidavit he swears or solemnly affirms to from his own knowledge and what paragraphs or portions he swears of solemnly affirms to on his own belief stating the grounds of such belief.

4. In this particular case the Government should have filed an affidavit of the chief Entertainment Duty Inspector to prove that this Inspector had made a local inquiry. In this connection the following observations in the case of Moinuddin v. Divisional Mechanical Engineer N.R. Rly : AIR1959All795 may also be referred to:

The tendency among Government officials to send their clerks or pairokars to swear affidavits in regard to facts which are within their own knowledge is to be deprecated. This practice is contrary to law and improper and smells of discourtesy to the High Court.

Allegations in an affidavit in proceedings under Article 226 must confine to statements based on the personal knowledge of the person swearing it and must not contain expression of opinion or submission of law.

5. Unless the fact that an inquiry was made on the spot by the Chief Entertainment Duty Inspector is established properly we cannot consider that that fact has been materially suppressed. It is however contended by the learned Assistant Government Pleader that the whole record of the Deputy Commissioner of Police is before the High Court and that the High Court should itself look into the whole record to see whether the inquiry has been made or not. In our opinion it is not the function of the Court to make an independent inquiry into the record sent by the tribunals if neither party has sought to establish the fact in the proper manner. The fact alleged is that an inquiry had been made by the Inspector and not that an inquiry had been made by the Deputy Commissioner of Police. Moreover that an inquiry had been made in April 1960 by the Inspector is not material for purposes of the contentions of this writ petition. There is therefore no merit in the preliminary objection.

6. We will now turn to the main contention urged by the petitioner in support of his petition. The previous licence which was valid upto 31 was replaced by a fresh one valid upto 31-12-61. The original show cause notice was issued on 14-6-60 while the first licence was pending and before the second licence came into being. But the order suspending the licence was passed on 28-2-1961 and at that time the licence which the petitioner held was the one which was in force from 1 to 31-12-61. Rule 131 of the Bombay Cinema Rules 1954 so far as relevant provides as follows:

Suspension or cancellation of Licence. (1) The licensing authority may suspend or cancel any license granted under these Rules for contravention of any of these Rules provided that the Licensing Authority shall give the licensee an opportunity to show cause before taking any action under this sub-rule.

It is therefore open to a licensing authority to suspend or cancel any licence granted under the rules provided the licensee had an opportunity to show cause. The show cause notice as already observed was issued on 14-6-60 and it mentioned that the licensee had a licence in form 'F' under Rule 110 of the Bombay Cinema Rules 1954, in respect of the Laxmi Talkies. The reference in the show cause notice is therefore obviously to the licence held by the petitioner on the date of the show cause notice. That licence was valid from 1-1-1960 to 31 12-1960. The show cause notice issued under rule 131 of the Bombay Cinema Rules 1954 held therefore reference to the licence which was valid upto 31-12-1960. Hut actually without giving any second show cause notice the authorities suspended the licence for the subsequent year namely 1961 which licence was issued on 31-12-1960. Before a licence is suspended or cancelled under Rule 131 a show cause notice should be issued why that particular licence should not be suspended or cancelled. In the instant case before the licence for the year 1961 was suspended no show cause notice had been issued to show cause why the licence for the year 1961 should not be suspended. The procedure adopted by the Deputy Commissioner of Police is therefore clearly contrary to Rule 131 of the Bombay Cinema Rules 1954 But it is contended by the learned Assistant Government Pleader that Rule 131 does not say that a show cause notice should have a reference to the licence which was to be suspended. He contends that the licence for the year I960 was renewed by the Commissioner of Police and that as there was a renewal of a licence it was competent for the Commissioner of Police to suspend the licence for 1961 although the show cause notice had no reference to the licence for 1964. No doubt Form F attached to the Bombay Cinema Rules 1954 says that a licence in Form F for the sale of Cinema tickets may be renewed. On the reverse of Form P space is provided for memoranda of renewal and the columns are provided for the entries relating to the date of renewal etc. the main Form F relates to licence for sale of Cinema tickets for admission to the Cinema at a particular place Para 4 of Form 'F reads as under:

This licence is granted or renewed subject to the provisions of The Bombay Cinema Rules 1953 and is liable to as suspended or cancelled far breach of any of the provisions of the said Rules and any breach of the provisions of the said Rules is punishable under the provisions of Section 7 of the Act.

Rule 116 of the Bombay Cinema Rules 1954 provides that a licence under Rule 110 may be granted for any period upto 31st December following the date of issue. It is therefore clear from Rule 110 has to be granted for the period upto 31st December following the date of issue.

The learned Assistant Government Pleader refers to Rule 107 relating to renewal of licences which reads as follows:

The Licensing Authority may on application being made to him in that behalf renew the Cinema licence for the requisite period subject to Rule 105 above. An application for the renewal of a licence shall be made in the manner laid down in Rule 102 but it shall not be necessary to attach to the application for renewal the true copy of the No Objection Certificate and the true copy of the Building permission unless specially required by the Licensing Authority.

This relates to a Cinema licence and therefore strictly speaking this rule does not relate to a licence for selling cinema tickets. Rule 107 is found in Chapter VII, which deals with cinema licences. Chapter VIII deals with licences for sale of tickets and it is clearly provided in Rule 116 which is found in Chapter VIII relating to licences for sale of tickets that a licence under rule 110 may be granted for any period upto 31st December following the date of issue. If a licence is originally issued for the year 1960 and is renewed for the year 1961 it really means that a fresh licence has been issued for the year 1961. The learned Assistant Govt. Pleader has not cited any authority in support of his contention to the contrary. In our opinion the effect of rule 131 is clearly that the licensing authority can suspend or cancel a licence in respect of which a show cause notice has been issued. If a show cause notice has been issued during the currency of one licence a different licence for the following year cannot be suspended or cancelled. Before the licensing authority suspends or cancels a licence issued under the Rules he should give the licensee an opportunity to show cause in respect of the particular licence which is sought to be suspended or cancelled. As the licensing authority has not done so it has clearly contravened Rule 131 of the Bombay Cinema Rules 1954.

7. It is contended by the learned Counsel for the petitioner that the inquiry contemplated by Rule 131 is a quasi judicial inquiry and that copies of statements recorded by the Chief Entertainment Duty Inspector should have been given to the petitioner. But it is not necessary to go into this question because we hold that the licensing authority namely the Commissioner of Police has contravened the requirements of rule 131 by failing to give the licensee an opportunity to show cause against the suspension of the licence. In these circumstances the question whether the inquiry contemplated by Rule 131 is a quasi judicial inquiry need not be decided. Vide State of Bombay v. K.P. Krishna : (1960)IILLJ592SC where it is observed that if the Court is satisfied that the reasons given by the Government for refusing to make a reference under Section 12(5) of Industrial Disputes Act (1947) are extraneous and not germane then the Court can issue and would be justified in issuing a writ of mandamus even in respect of an administrative order. In Govindrajan v. The Regional Inspector of Municipal Councils and Local Boards Vellore : AIR1960Mad238 it is observed that although an order of the Government directing fresh elections in contravention of Village Panchayats Act is not judicial or quasi-judicial and therefore a writ of certiorari would not be appropriate where it is clear that the section complained of involves a contranvention of the statute an appropriate writ can be issued even though the writ of the particular kind which the petitioner has asked for may not be available to him. The contention that no writ of certiorari can issue can be relevant only as regards the form of the matter and not its substance.

8. In the instant case there was a clear contravention of Rule 131 of the Bombay Cinema Rules 1954 and therefore we order that a writ be issued against respondents Nos. 1 and 2 prohibiting them from enforcing Order No. 478 of 1960-61 dated 28-2-1961 referred to as Annexure C to the petition. The petition is allowed with costs.


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